R v East

Case [2015] ACTSC 54 16 February 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v East
Citation:	[2015] ACTSC 54
Hearing Date:	4 February 2015
DecisionDate:	16 February 2015
Before:	Penfold J
Decision:	1. The Good Behaviour Order made on 27 February 2013 is cancelled and the sentence of 6 months imprisonment is imposed, backdated to 18 July 2014 and expiring 17 January 2015. 2. Mr East is convicted of the offence of forcible confinement and is sentenced to imprisonment for 17 months, backdated to 18 November 2014 and expiring 17 April 2016. 3. Mr East is convicted of the offence of common assault and is sentenced to imprisonment for 7 months, starting 18 October 2015 and expiring 17 May 2016. 4. For the total 22-month sentence, a non-parole period of 10 months is set, backdated to 18 July 2014 and expiring 17 May 2015.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for forcible confinement of partner and associated common assaults – offences breached good behaviour order made in suspending part of sentence imposed for earlier offence in relation to same complainant – Victim Impact Statement – offender’s traumatic childhood – significance of alcohol and drug abuse – offender’s acceptance of counselling – need for general and specific deterrence – comments by another judge about facts of another forcible confinement offence are not statements of principle requiring imposition of any particular sentence in this or other cases – offender sentenced.
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 34
Cases Cited:	Twerd v Holmes [2010] ACTSC 55
Parties:	The Queen (Crown) Steven Julian East (Offender)
Representation:	Counsel Ms A Jamieson-Williams (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 43 of 2014; SCC 206 of 2014

Steven East has pleaded guilty to one offence of forcible confinement and one of common assault. Another common assault is to be taken into account in sentencing for the forcible confinement offence.

The offence of forcible confinement arises under s 34 of the Crimes Act 1900 (ACT) and carries a maximum penalty including imprisonment for 10 years. Common assault arises under s 26 of the Crimes Act and carries a maximum penalty including two years imprisonment.

The incident from which these charges arose took place in October 2013, and is described in the case statement as follows.

On Monday 14 October 2013, the complainant was at her flat [in Red Hill] with [Mr East] who was her carer and partner.
[Mr East] had been in an “on again off again” sexual relationship with the complainant since about September 2010 and had moved back in with [her] into the flat about one month earlier. The complainant was the sole lessee on the tenancy agreement with ACT Disability Housing
Since September 2010, [Mr East] had been the complainant's carer. [He] was responsible for assisting [her] with dispensing her medication, preparation of meals, providing support for her mental…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v East

Details

AGLC: R v East [2015] ACTSC 54
Case: [2015] ACTSC 54
Decision Date: 16 February 2015

CaseChat Overview and Summary

The case of R v East was heard in a higher court and involved the defendant, Mr East, who faced charges of forcible confinement of his partner and associated common assaults. These charges constituted breaches of a good behaviour order that had been imposed as part of the sentence for a previous offence against the same complainant. The court was tasked with determining the appropriate sentence for Mr East, considering factors such as the victim impact statement, Mr East’s traumatic childhood, his alcohol and drug abuse, and his acceptance of counselling. Additionally, the court had to consider the need for general and specific deterrence when passing sentence. The court needed to decide whether comments made by another judge about the facts of another forcible confinement offence should influence the sentence in this case.

The court began its analysis by examining the nature and seriousness of the offences, the circumstances surrounding them, and the factors that might mitigate or aggravate the sentence. It considered the breaches of the good behaviour order, which indicated a pattern of abusive behaviour towards the same victim. The court also assessed the victim impact statement and the personal background of Mr East, including his history of trauma and substance abuse, as well as his engagement in counselling. The court emphasised that while these factors were relevant, they did not override the need for general and specific deterrence, particularly given the seriousness of the offences. The court clarified that comments by another judge about a different case were not binding principles that necessitated a particular sentence in this case. Ultimately, the court balanced all these considerations to determine an appropriate sentence that served both the interests of justice and the broader community.

In arriving at its decision, the court imposed a sentence that reflected the severity of the offences and the need to protect the community. The court cancelled the good behaviour order and imposed a sentence of six months imprisonment, backdated to the date of the original order. For the forcible confinement offence, Mr East was sentenced to imprisonment for 17 months, backdated to the date of his arrest. For the common assault offence, he was sentenced to imprisonment for 7 months, to commence after the completion of the sentence for the forcible confinement. The total sentence was 22 months, with a non-parole period of 10 months. This sentence was intended to address the seriousness of the offences, the need for deterrence, and the rehabilitative needs of Mr East.

The court's final orders included the cancellation of the Good Behaviour Order made on 27 February 2013, the imposition of a 6-month imprisonment sentence backdated to 18 July 2014 and expiring on 17 January 2015, a conviction and sentence of 17 months imprisonment for the offence of forcible confinement backdated to 18 November 2014 and expiring on 17 April 2016, a conviction and sentence of 7 months imprisonment for the offence of common assault starting on 18 October 2015 and expiring on 17 May 2016, and a non-parole period of 10 months set for the total 22-month sentence, backdated to 18 July 2014 and expiring on 17 May 2015.

Orders

Orders of the court

1. The Good Behaviour Order made on 27 February 2013 is cancelled and the sentence of 6 months imprisonment is imposed, backdated to 18 July 2014 and expiring 17 January 2015.

2. Mr East is convicted of the offence of forcible confinement and is sentenced to imprisonment for 17 months, backdated to 18 November 2014 and expiring 17 April 2016.

3. Mr East is convicted of the offence of common assault and is sentenced to imprisonment for 7 months, starting 18 October 2015 and expiring 17 May 2016.

4. For the total 22-month sentence, a non-parole period of 10 months is set, backdated to 18 July 2014 and expiring 17 May 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v East [2015] ACTSC 54

Most Recent Citation

The Queen v JPM [2012] NTSC 43

Cases Citing This Decision

QUESTIONS OF LAW RESERVED (NOS. 1 AND 2 OF 2023) [2024] SASCA 82
Citation 1

…ommission (1988) 164 CLR 261; R v A, B, D & C [2021] 2 WLR 1301; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; R v East (2003) 13 NTLR 91; 189 FLR 118; R v Edelsten (1990) 21 NSWLR 542; R v Ellis (2001) 162 FLR 423; R v Giaccio (1997) 68 SASR 484; R v Hughes (2000) 202 CLR 535; R v Metcalfe…
R v Rusan [2022] ACTSC 119
Citation 2 (Para 1)

…istory are not comparable to the current case in a range of ways. Likewise, in other authorities cited by the Crown, such as the decision of R v East [2015] ACTSC 54, the confinement in that matter was for five hours. The offender was subject to a suspended sentence order at the time of the offending as well as a…
R v Blackburn; R v QH [2021] ACTSC 284
Citation 3

…nt of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54, it seems to me that the matters relevant to that assessment include at least: · the length of the unlawful confinement; · the extent that it was pre…
R v Fry [2021] ACTSC 138
Citation 4

…nzariti [2014] ACTSC 333 R v Cowling [2019] ACTSC 138 R v Crawford (No 1) [2020] ACTSC 245 R v DK [2016] ACTCA 7 R v Donovan [1934] 2 KB 498 R v East [2015] ACTSC 54 R v Eichmann [2019] ACTSC 212 R v Eimerl [2015] ACTSC 72 R v Forrest (No 2) [2017] ACTSC 83 R v HC [2018] ACTSC 49 R v Massey (No 1) [2020] ACTSC 256…
Laipato v The Queen [2020] ACTCA 35
Citation 5 (Para 1)

…In R v East [2015] ACTSC 54, the offender confined the complainant in her home for five hours. During the confinement, he grabbed her by the throat, preventing her from breathing. He was on conditional liberty at the time of the offending and had a significant criminal history, including convictions for offences o…
R v Griffiths (No 2) [2020] ACTSC 118
Citation 6

…nt of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54, it seems to me that the matters relevant to that assessment include at least: · The length of the unlawful confinement; · The extent that it was pre…
R v Cowling [2019] ACTSC 138
Citation 7

…ACTSC 60 R v Catanzariti [2014] ACTSC 333 R v Cranfield [2018] ACTCA 3 R v Dalton; R v Fleet [2014] ACTSC 204 R v Dillon [2018] ACTSC 164 R v East [2015] ACTSC 54 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Eimerl [2015] ACTSC 72 R v Harrison [2002] NSWCCA 79; 121 A Crim R 380 R v HC [2018] ACTSC 49 R v…
R v Sharp [2018] ACTSC 286
Citation 8

…R v Dalton; R v Fleet [2014] ACTSC 204 R v Degioannis (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 16 July 2012) R v East [2015] ACTSC 54 R v Eimerl [2015] ACTSC 72 R v Froome [2018] ACTSC 152 R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 Septemb…
Dimech v Tasmania [2016] TASCCA 3
Citation 9 (Para 4)

…That was also the view reached by Mildren J in R v East (2003) 13 NTLR 91 at [23]-[28] in respect of a relevantly indistinguishable definition of the words "private conversation" in s 3 of the Surveillance Devices Act 2000 (NT). His Honour there followed an earlier unreported decision of Cummins J in R v Storey (Sup…
Singh v The Queen [2015] ACTCA 65
Citation 10 (Para 1)

…In R v East [2015] ACTSC 54 the offender was the carer and partner of the complainant. He pleaded guilty to forcible confinement and assault. After an argument the complainant told the offender to leave the flat. She attempted to leave the premises, saying that she wanted him gone by the time she returned. The off…
R v Evans [2015] ACTSC 137
Citation 11 (Para 1)

…t of fairness is whether the call is being used to “get around” the exercise of an accused of his or her undoubted right to silence. See R v East (2003) 13 NTLR 91 at 99; [30] and the cases there cited.…
The Queen v JPM [2012] NTSC 43
Citation 12

…HML v The Queen (2008) 235 CLR 334; R v Broyles [1991 3 S.C.R. 595; R v East (2003) 13 NTLR 91; Nieterink (1998) 76 SASR 56; Raabe (1985) 14 A Crim R 381; Stuart v The Queen [2010] NTCCA 16; The Queen v Swaffield and Pavic (1998) 192 CLR 159, referred to…

See all citing cases →

Cases Cited

Twerd v Holmes [2010] ACTSC 55
Citation 1 (Para 1)

…The prosecutor referred me to the decision in Twerd v Holmes [2010] ACTSC 55, a decision of a single judge on an appeal from the Magistrates Court, describing it as an authority for principles of sentencing in a case of this kind. The unlawful confinement offence in that case had some similarity to the current one…

Legislation Cited

Crimes Act 1900 (ACT) 26, 34
3 mentions (from Para 1)